Saturday, May 28, 2011

For the second time in just a few weeks, I have been experiencing serious technical problems with the system that hosts my blogs (ie, "Blogger"). I have enjoyed using Blogger and I like many of its features but I am becoming increasingly frustrated with the problems I am experiencing. The last time I had problems, Blogger was updating some features and the problems resolved themselves after a few days. I am hoping this is the case again. Otherwise, I may not be able to post new information for a few days and I may soon be looking to move the blogs to a new system or stop blogging altogether. If you have any comments or suggestions please send them to me by email.

Friday, May 20, 2011

A few months ago, I thought that "the next big thing" in legal ethics was going to be a debate over whether to allow the use of screening to avoid concurrent conflicts of interest in some cases. I may be wrong. It is starting to look like the next big thing is going to be a debate about whether nonlawyers should be allow to own equity stakes in law firms.

One reason this has not been allowed up to now is to avoid the possibility that non-lawyers - essentially "investors" in the firm - or the need for investors might compromise the lawyers' independent professional judgment.

This concern is not trivial in my opinion. But, as the Wall Street Journal reports today (here and here), pressure is building in the business to let law firms raise capital from nonlaywers. Yesterday, plaintiffs’ firm Jacoby & Meyers filed suits in New York, New Jersey and Connecticut claiming that their state rules barring outsiders from owning stakes in firms unconstitutionally restricts interstate commerce. For more on the story, go to the Legal Ethics Forum (here)

If successful, this case could lead to the most significant change in which law is practiced in the United States in many years.

The Commission in charge of reviewing and revising the ABA Model Rules just announced it will hold a meeting to discuss this issue during the upcoming annual meeting of the Center for Professional Responsilbity in Memphis, June 1-4. For information (and to register) for the annual meeting, go here.

UPDATE (5/20): Blogger Eric Turkewitz has a comment on the idea of allowing non-lawyers to acquire shares in law firms here and here (hint: he is against it).

Thursday, May 19, 2011

An Illinois Assistant Attorney General is the subject of an interesting ethical charge after allegedly using a "ruse” to gain evidence against a condominium project for lack of handicapped access. He is accused of entering the premises under the false pretense that he was looking for a condo for his grandmother. More on the story here. The complaint is available here.

This is an example of an old question: whether it is ethical to engage in some level of deception in order to confirm whether someone else is discriminating.

Assuming all the facts are true, the lawyer in question was, in fact, dishonest. But he was dishonest "with good intentions" or for a good reason -- in order to find whether the other party was violating the law.

In part, the solution to the problem might be simply to let others do the investigating or, as in this case, the "testing." Attorneys should stay out of it and wait until the information is gathered to intervene in the prosecution. On the other hand, an attorney can't ask someone to do something the attorney can't do himself, so I am not sure where that leaves the attorney who needs to engage in some level of deception to gather the information.

The Michigan Supreme Court has adopted a new version of Rule 7.3 that prohibits solicitation of accident victims within 30 days of the accident or injury. The rule will implement regulation that is permissible in light of the Supreme Court's decision in Florida Bar v. Went For It. The decision was not unanimous, though. There are dissents. For more on the story and a good quote from one of the dissenting opinions, go here.

Florida Bar v. Went for It is a terrible decision. It is illogical and inconsistent with prior precedent. It therefore set a bad precedent and it is not encouraging to see states following it. But it is what it is. It is still the law of the land.

I have not seen the new Michigan rule so I can't comment on it. The one thing I do hope is that it, at least, applies to both plaintiffs and defendants' lawyers. This was one of the main problems with the rule in question in Went for it. Because of its wording, it only applied to plaintiffs' lawyers leaving victims vulnerable to personal visits by defendants' lawyers. The rule simply did not advance the state interest in protecting the victims from intrusion. This was a fatal flaw in the rule that the Court chose to ignore. I hope the Michigan Court has not ignored this point.

Wednesday, May 18, 2011

Here is yet another comment on the character of flat fees. I have commented on this issue several times before, most recently here.

In this case (available here), the attorney and client agreed to a flat fee. The attorney began to work on the matter but failed to follow through on it. He then claimed that the fee had been earned on receipt. The Board disagreed and stated that "Respondent's primary argument is that "there can be no unused [or unearned] portion of a 'flat fee' " This is simply erroneous as a matter of law. It would be absurd for the law to provide, as respondent argues, that " [t]he total fee was due (earned) the moment the attorney began any work on the file." This would enable an attorney to begin an agreed upon representation, abandon it, and retain the entire fee as if the whole of the work had been completed. For obvious reasons, this has never been the law..."

This is the logical result for the circumstances of the case. Otherwise, as the Board correctly points out, attorneys would be free to disregard the client's matters and collect the fees anyway.

Here is a good reminder of the fact that a lawyer's conduct outside the practice of law can result in professional discipline. In this case, a lawyer’s license was revoked because he attempted to hide assest during his divorce. Go here for the full story.

Interestingly, the attorney for the disciplined lawyer is quoted as saying that "the discipline is unusual because the facts related to the revocation are from a personal divorce, not mishandling a client's case. This had nothing to do with his performance as a lawyer."

Although he is correct in stating that the sanctions are not related to the lawyer's performance as a lawyer, he is wrong is claiming this is unusual. It is pretty well known that a lawyer can be disciplined for conduct outside the practice of law, as long as the conduct in question relates to the lawyer's character or ability to practice law. The conduct in this instance brings into question the lawyer's honesty, integrity and respect for the legal process. Obviously, these are pretty relevant factors to consider when deciding whether a lawyer's conduct calls for discipline.

There may be an argument as to the severity of the sanction imposed, but that is a different matter. I see no problem with the fact that a sanction was imposed.

In an interesting bit of news, a lawyer whose conduct was ctiricized by the press and bloggers over the internet has sued 74 defendants including several bloggers whose blogs I follow regularly.

At the risk of getting added to the lawsuit, I will repeat part of the story here. The story apparently started with an article in the Washington Post that stated that a Superior Court judge in Washington DC declared a mistrial in a murder case in which the judge thought the attorney exhibited "numerous signs that he [the attorney] lacked knowledge of proper trial procedure" and that went on to say that the judge told the attorney "during a hearing . . . that he was “astonished” at his performance and at his “not having a good grasp of legal procedures”". Here is a link to a comment by one of the jurors in the case. (Thanks to Simple Justice for the link.)

Following this story, a number of bloggers commented on the lawyer's conduct. The news today is that the attorney has fired back by suing them for defamation. Two of those bloggers have commented on the situation here and here. This second comment, in the blog "Simple Justice", is really worth a look. It opines that "[t]he substance of the action is not merely frivolous, but the action was brought in New York Supreme Court, and had [the plaintiff's] lawyer done some homework, he would [have] learn[ed] that New York's long arm statute expressly excludes defamation." Simple Justice then identifies the plaintiff's attorney and quotes his ads on CraigsList and in the Pennysaver, which is pretty interesting.

UPDATE (May 18): Eric Turkewitz, one of the bloggers sued, has posted an great response (with links to more information) to the lawsuit here. It is very much worth reading.

Monday, May 16, 2011

I have often commented on inconsistencies regarding sanctions among jurisdictions and sometimes within jurisdictions. Most recently, I mentioned (here) a recent decision by an Illinois Hearing Board that discussed the conduct of an attorney engaged in what the Board called "extremely serious" ethics violations which the Board also found were aggravated by a series of important factors, including the fact that the lawyer did not show any remorse for the impact his actions had on his clients or on the legal profession that the fact that he had been disciplined in the past. Yet, having described the conduct as "extremely serious" and having found aggravating factors, the Board imposed a mere one year suspension. One would think that misconduct described as that serious would have resulted in a higher level of discipline.

I am glad to see now that I am not alone in my frustration with this issue.

Here is another case, courtesy of the Legal Profession blog. In this one, a New Jersey attorney was suspended for abandoning a client in a family law matter and defaulting in the ensuing proceeding before the Bar. Although the Disciplinary Review Board found that the attorney had shown "nothing but disrespect - indeed, insolence - in his dealing with the disciplinary system", the Board said the conduct would merit merely a three month suspension. To this, Mike Frisch, of the Legal Profession blog, replies, "[i]f abandoning a client and ignoring a bar complaint normally merits a three-month suspension, New Jersey needs a new normal."

And, today, over at the Legal Ethics Forum, Prof. Stephen Gillers expresses his frustration with the problem stating,

"In reviewing several years worth of disciplinary opinions from courts around the nation in connection with a writing project, I was struck again by a disturbing pattern. . . .

The courts' opinions first tell a really awful story about professional or personal misconduct, sometimes sordid or tawdry, sometimes thieving, sometimes duplicitous. The opinions lay it all out and as readers we are led to expect a proportionate sanction.

But then comes that frequent phrase "an unblemished record," a phrase one rarely sees elsewhere in life or law, sometimes accompanied by "no prior discipline" (which more often than not may mean the lawyer has not heretofore been caught), and perhaps a citation to character testimony.

And although the reader had been led to expect disbarment or a long suspension for the bad behavior so abundantly detailed . . . he or she finds instead the most modest of sanctions -- a public reprimand or a suspension the length of a nice vacation.

I sometimes wonder if we should just forget the sanctions and instead require the lawyer to give the court's opinion to all present and prospective clients. It might better protect the public."

Go here to see comments posted in the Legal Ethics Forum in response to this comment.

UPDATE (5/16): Mike Frisch, of the Legal Profession blog, replies to Giller's last comment by stating that "[w]hat is really needed to protect (or at least forewarn) the public is ready and easily available online access to complete information about bar sanctions. Not summmaries, but the actual opinions, informal admonitions, hearing reports, review board reports, court decisions--the full package. . . . Unfortunately, the reality is that many jurisdictions make this kind of information either difficult or impossible to find. Until that situation is rectified, bar discipline will be as much about the parochial, self-interested concerns of the Bar rather than (as every opinion on the subject claims) the protection of the public."

Friday, May 13, 2011

Prof. Jonathan Turley is reporting today on a case out of Oklahoma where a murder conviction was overturned due to the comments at trial by the Judge. The appeals court found the judge's comments to be “a misstatement of the law that was an inherently coercive intrusion into the jury’s deliberative process.” Interestingly, this is not the first controversy for the judge who was previously asked to step down in a criminal trial after allegedly using an offensive term to describe illegal immigrants. Go here for the full story.

The Illinois Supreme Court just heard oral arguments in a case where the administrator of the state's disciplinary authority is appealing a ruling arguing that the sanctions imposed in a particular case were too lenient. You can watch the video by going here, or, if you prefer just the audio, you can go here. Surprisingly, the attorney facing the sanctions represents himself!

The case (In re Mulroe), is about an attorney who mishandled a client's money. To make a long story short, he deposited it into one account, then moved it around into other accounts and eventually took too long to repay it. He apparently had very sloppy accounting of the money in all his accounts and was guilty of commingling at the very least. It sounds like he had a number of accounts, kept money in all of them and moved the money around using it for whatever he needed to use it at the time. He claimed he always had enough money, but that was adding the funds in all his accounts at any given time.

The disciplinary authority found the attorney had violated the rules and imposed sanctions but also found that the conduct was not "dishonest" - that it was the result of sloppy bookkeeping rather than of intent to convert the client's funds. The administrator appealed arguing the sanctions should more severe because the conduct should be considered to be dishonest. In fact, he argued the conduct was the equivalent of misappropriation. The administrator argued that the lawyer engaged in a willful violation of the fiduciary duty to maintain client's funds properly.

Interestingly, the controversy seems to revolve around whether the conduct was "dishonest." In my opinion, however, the better way to approach the issue would be to adopt the view of the ABA Standards for Sanctions which is based not on a value judgment of the character of the conduct but on the “mental states” of the lawyer who engaged in it.

The ABA Standards recognize three different mental states: intent, knowledge and negligence. In this case, the administrator is arguing that the attorney acted with "knowledge" while the attorney argues he was merely negligent.

If you listen to the argument you will hear how at one point the discussion seems to be heading that way, although by raising another alternative mental state: "recklessness." One of the justices asks the attorney point blank if the conduct does not show that he was reckless which makes the attorney look very uncomfortable.

I have always had a problem with the term recklessness (particularly in torts) because it can only be defined as either a high degree of negligence or as disregard for the consequences of the conduct. If it is the former, it is negligence; if it is the latter, it is knowledge. So I am afraid "recklessness" adds nothing but confusion to the issue.

The oral argument is long (almost one hour), but it is worth watching.

Here is an interesting article from Forbes that describes some ways in which some lawfirms inflate their fees. The article is called “Grazing,” Photocopying And Other Tricks Inflate Legal Bills but the most interesting method described is charging clients for the use of conference rooms. According to the article, "some law firms ... form separate LLCs to rent out their conference rooms, turning them into profit centers instead of a cost of doing business." I have to admit, I had not heard that one before.

Tuesday, May 10, 2011

The Legal Profession blog is cmmenting today on a case in which the New Jersey Appellate Division affirmed a drug possession and distribution conviction despite the fact that the defendant and his attorney met for the first time on the morning of the suppression hearing and trial. The court majority concluded that the defendant failed to demonstrate ineffective assistance of counsel or other prejudice. The trial judge scoffed at the need for any preparation, likening a drug case to an intersection collision civil trial.

It makes me sick to hear that a judge would force a lawyer to represent a criminal defendant without preparation. What kind of system is that? What kind of moral grounds do we have to say that our criminal justice system is fair? This is ridiculous.

One of the justices dissented stating "I deem it self-evident that a rational and just criminal justice system cannot accept as valid a conviction predicated on a scenario in which a defendant, through no fault of his or her own, meets his or her lawyer for the first time on the day the case is scheduled for trial" and concluding that "A system of criminal justice that permits a conviction to stand in a case where an indigent man, through no fault of his own, meets his attorney for the first time on the day the case is scheduled for trial, carries with it the indicia of a "show trial," a sham proceeding in which the outcome is perceived as predetermined."

Monday, May 9, 2011

In her blog My Shingle.com, attoreny Carolyn Elefant has posted a very good short comment that puts in context some of the questions about flat fees that I have been discussing in previous posts. Go here to read her post.

As I have argued in the past a number of jurisdictions have taken an approach to flat fees that eliminates the distinction between a flat fee and a security retainer and thus the advantage of flat fees as an alternative to hourly billing. As Ms. Elefant points out in her questions, this creates a number of problems for attorneys seeking to use flat fees. For example, she asks about the language to be used in a retainer agreement that will allow the lawyer to keep the full fee if the case does not go to trial (and arguably, at least some of the fee is “unearned”).

For some of my previous comments on this issue (and links to others) go here, here, and here.

The legal malpractice law review blog is reporting on two cases that illustrate two very different approaches to the issue of the application of a statute of limitation in a legal malpractice action.

In Laclette v. Galindo, 184 Cal. App. 4th 919 (2010), the court held that the continuous representation doctrine will toll the statute of limitations in a malpractice action for the period of time the attorney is listed as counsel of record-- even where no active representation is undertaken. (See here.)

Meanwhile, in Bennett v. Hill-Boren, P.C., 52 So. 3d 364 (Miss. 2011), the court held that the statute of limitations begins to run on the date the client reasonably should have known that the lawyer was negligent. (See here.)

Saturday, May 7, 2011

I have often commented on inconsistencies regarding sanctions among jurisdictions and sometimes within jurisdictions. Here are two separate news items that help illustrate the issue once again.

In the first one, the Legal Profession blog is reporting on a case in which an attorney who was suspended for a year and a day in Colorado was then disbarred as reciprocal discipline by the Maryland Court of Appeals (the opinion is available here). The court is correct in pointing out that it is not required to impose the same sanction imposed by the original discipling court. But, one wonders why the courts reached such different results. There is a huge difference between a one year suspension and disbarment.

The other item comes from Illinois where a recent decision by an Illinois Hearing Board recommended a one-year suspension of an attorney who engaged in a wide array of what the Board called "extremely serious" ethics violations that included conflicts of interest and dishonesty to courts. The Board also found there were important aggravating factors including the fact that the lawyer did not show any remorse for the impact his actions had on his clients or on the legal profession that the fact that he had been disciplined in the past. The question this case raises in my mind relates to the severity of the sanction. If the conduct was "extremely seriuous" and there were aggravating factors, how come the sanction is merely a one year suspension. One would think that misconduct described as that serious would have resulted in a higher level of discipline.

In the end, as I tell my students, you can never truly predict what the sanctions will be, which means, regardless of what the conduct is, you always risk disbarment.

Here is a good story for law students out there: do not start offering legal advice and acting like a lawyer until you are one officially. The Legal Profession blog is reporting on a case in which an attorney] was suspended for one for offering legal advice to a prospective client before she was admitted even though she truthful when she told the possible client that she had a law degree and had passed the bar exam, but was awaiting a background check. Whatever she said, she held herself out as an attorney when she wasn’t entitled to practice and that is all that matters. Easy solution; don't do that!

Three of my most recent posts have been about prosecutorial misconduct. Usually, this topic relates to conduct of prosecutors as they investigate or litigate criminal charges. Here is a story about a different type of prosecutorial misconduct: abuse of power. Prof. Jonathan Turley is reporting that a (now former) prosecutor in Tennessee has been charged with official misconduct for allegedly offering leniency in exchange for sex with defendants or their mothers. Go here for the story.

Tuesday, May 3, 2011

A few days ago, I posted that I felt I had been wrong to speculate that the Supreme Court actually wanted to address the problem of prosecutorial misconduct (see here). Well, it turns out maybe I was just partially wrong... in a way...

In a speech Monday night to the Equal Justice Initiative, retired Justice John Paul Stevens criticized the Court's decision in Connick v Thompson stating that it and other decisions have given local prosecutors impunity for violating constitutional rights. Go here for the full text of the speech. (Thanks to the Wall Street Journal law blog for the link.)